Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

Supreme Cour, US. ]

FILED

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~

MAR 26 dao) (2

3 No. 00-596, 00-597 | MAR 26 2001 |

|_ OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

LORILLARD TOBACCO CoO., et al..,

Petitioners,

Vv.

THOMAS F, REILLY, ATTORNEY GENERAL

OF MASSACHUSETTS,

Respondent.

ALTADIS U.S.A. INC., et al.,

Petitioners,

7.

THOMAS F. REILLY, ATTORNEY GENERAL

OF MASSACHUSETTS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE AMERICAN PLANNING

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

RANDAL R. MORRISON

ATTORNEY AT LAW

P.O. Box 421318

San Diego, CA 92142-1318

(858) 573-6101

March 26, 2001

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

[BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether state regulations that restrict the permissible

locations for tobacco advertising, but do not affect the

federally mandated health warming for cigarettes, are

preempted by the Federal Cigarette Labeling and Advertising

Act.

2. Whether, under the First Amendment, regulations that

merely restrict the display of publicly visible tobacco

advertising in locations near schools and playgrounds are

properly analyzed under the intermediate scrutiny test set

‘forth in Central Hudson Gas & Electric v. Public Service

Commission, 447 U.S. 557 (1980), and, if so, whether the

regulations satisfy that test.

TABLE OF CONTENTS

| Page

INTERESTS OF AMICI CURIAE ......ccccccsssssssseseseseseees l

STATEMENT OF THE CASE............cccccsosssoseceseees ni 2

SUMMARY OF ARGUMENT ..........ccccccccsssescecececesceees 2

ON alicia diihiaaiecscscnenistennsidduivenrccandiiteinsas a

I. THE MASSACHUSETTS REGULATION IS

NOT PREEMPTED BY THE FEDERAL

A. Most Federal Courts of Appeal Have

Correctly Concluded That Congress

Intended to Preempt Only Message

Content, and Not Sign Location................... 3

B. This Court’s Cipplone Holding, That

Congress Preempted Only Cautionary

Statements on Labels and Advertisements,

Controls the Preemption Issue in This

SESE SS Ge Aa oe ee 4

Il. THE MASSACHUSETTS REGULATIONS

ARE CONSTITUTIONAL UNDER CEN-

ee ih caicaihaingniisbinbinncaciantsiinaisans 7

A. Although Most Tobacco Advertising Is

Psychologically Deceptive and Arguably

Advocates Illegal Activity, the First Prong

of Central Hudson Is Not a Workable

Basis for Concluding That Speech

Promoting Tobacco Is Totally Without

First Amendment Protection. ............ccce:00+. 7

B. Massachusetts’ Regulations Serve Several

Governmental Interests Which Are at

a SORCERY en ee 8

iV

TABLE OF CONTENTS—Continued

C. The Regulations Directly Advance the

Substantial Interests in Protecting Children

and the Public Health System by Reducing

the Number of Children and Teens Lured

into Becoming New Smokers ...............:00+8

The Regulations Are Not More Extensive

Than Necessary to Serve the Substantial

Fe I ie ncasitoicaietnranscnsahaentiatetecsminic

Ill. THIS CASE PRESENTS NO OCCASION

FOR A MAJOR CHANGE TO THE

COURT’S COMMERCIAL SPEECH

IESE RNA. sscanbiethalennssnnnsimionsensianbannsiinesionstapiiannvaie

A. Our Cultural Respect for the Challengers

Who Changed the Course of History

Requires a Higher Level of Protection for

PE TI, cen titiitesissisinitcitiststcininiininnside

. This Court’s Early Cases on Commercial

Speech Clearly Laid the Foundation for

Maintaining the Lower Level of Protection

for Commercial Speechh.......cc.eccorssscsessecsseseee

The Fact That the Regulations Affect Only

Tobacco Signs Does Not Invoke Strict

The Court’s Recent Commercial Speech

Cases Confirm That Central Hudson Is a

Workable Test, Flexible Enough to

Analyze a Wide Range of Factual

ID cissinctisnssnbishapsossstadnetnnanpiinicsiinaebannia

Page

10

11

14

14

16

19

23

ee erent

Vv

TABLE OF CONTENTS—Continued

E. A Significant Toughening of the Central

Hudson Standard For Billboards Would

Seriously Impede State and Local

Government’s Ability to Regulate Signs .....

COLI AA RBII S isiiniststianeivasinasinsiintseciinnsanannnnilansubieieanibiiians

Page

vi

TABLE OF AUTHORITIES

CASES ) Page

Ackerley v. City of Somerville, 878 F.2d 513 (1st

aE. SID senenpisesnseabiebsiabaceiahsnianiisnestbannaabestahebeee 19n.8

Berman y. Parker, 348 U.S. 26 (1954) ........cccceeee 2, 24

Board of Trustees v. Fox, 492 U.S. 469

EPID nesssdidensnunstanicabsaaeennndhdisabakbennasvaaiaatasinubas 12, 19, 22

Bolger v. Young’s Drug Products Corp., 463

Falls MOREL 0 Oe isaicsicisininessdieasninsaelaidepbiaaiiiaaesadneinns 9

Burson v. Freeman, 504 U.S. 191 (1992).............. 12

Capital Broadcasting v. Mitchell, 333 F.Supp.

582 (D.C.D.C. 1971), affd mem. sub nom |

Capital Broadcasting v. Acting Attorney

General, 405 U.S. 1000 (1972).............cccseeeeeeece 6

Carey v. Population Services International, 431 !

ies GU CE TET 7 Dascnsscsctiésseceneivehainnssanneaatnaiabiiamses 9

Central Hudson Gas & Electric v. Public Service

Commission, 447 U.S. 557 (1980)..............000000 passim

Cippolone v. Liggett Group, 505 U.S. 504

EID innninsaincesennnsansansenssanicnndpenle aeieuneeiaaenaaiiden ke

Consolidated Cigar v. Reilly, 218 F.3d 30 (2nd

2 iy IPR ererin re Oe e Lm NIN Ea 3

Denver Area Educational Telecommunications

Consortium, Inc. v. F.C.C., 518 U.S. 727

eID sninssinsncsnenbihgpapeiaialeiaiondiieabiaiiidiniasiiiiveds 8

F.C.C. v. Pacifica Foundation, 438 U.S. 726

I: SF A) shcosinicineinidcbenasabiohiendusiictalbaieiotsiipaliainabas 8 |

Federation of Advertising Industry Represent-

atives v. Chicago, 189 F.3d 633 (7th Cir.,

1999), cert. denied 529 U.S. 1066 (2000).......... 3,6

F.D.A. v. Brown and Williamson, 529 U.S. 120

NFO Mien e RAT Pee O Us RV AOE TIEN 11

44 Liquormart v. Rhode Island, 517 U.S. 484

EFI IAE Gisinis is nhcndsnideistonsnaanisatemmmasaiibicamaetinaiauasdin 12, 13

Ginsberg v. New York, 390 U.S. 629 (1968) ......... 9

vii

TABLE OF AUTHORITIES—Continued

Page

Greater New Orleans Broadcasting Ass’n v.

J Bg FON Wi eg CURSO PR vitteenseinioseerssaarsins 14, 22, 23

Greater New York Metropolitan Food Council, ~

Inc., v. Giuliani, 195 F.3d 100 (2nd Cir.,

1999), cert. denied, 529 U.S. 1066 (2000)......... 4

Hill v. Colorado, 530 U.S. 703 (2000) .............000. 12

Ladue v. Gilleo, 512 U.S. 43 (1994) ..e.cccccccccccssseee 16

Lindsey v. Tacoma-Pierce County Health Dept.,

195 F.3d 1065 (9th Cir. 1999), amended 203

Se 8 TP Cabbie sntnesnsceotensinisetsnanenindosercons 4

Lorillard v. Reilly, 84 F.Supp.2d 180 (2000)......... 8

Medtronic v. Lohr, 518 U.S. 470 (1996)...........000 6

Metromedia v. San Diego, 453 U.S. 490 ..........00. y &.

12, 18, 19-21, 24

Mugler v. Kansas, 123 U.S. 623 (1887) ..........000. 9

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447

PTSD citnassesnnanets sooschipienibeiabsaahitsbngielbsiinasiaadnicistinies 17

‘Packer Corp. v. Utah, 285 U.S. 105 (1932) seccocose 13

Penn Advertising of Baltimore, Inc., v. Mayor

and City Council, 63 F.3d 1318 (4th Cir.,

1995), vacated and remanded, 518 U.S. 1030

(1996), adopted as modified, 101 F.3d 332

(4th Cir., 1996), cert. denied, 520 U.S. 1204

Emr cian celeb deanisccasilicaabaib bi illin itidcbieeinlensin 4

Rappa v. New Castle County, 18 F.3d 1043 (3rd

ae ig, SPUN niahinaddiniscatensieapbsatanisanetwilionesticdasastonins 21 n.9

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ........00.. 16, 21, 22

Rex v. Tuchin, Holt 424 (1704)........ccccscsccccesceseeees 15

Rubin v. Coors, 514 U°S.,476 (1995).....cccccecceseeseee 12,13

U.S. v. Edge Broadcasting, 509 U.S. 418 (1993) .. 9,22

Ward v. Rock Against Racism, 491 U.S. 781

I aT iaicicthas Gi tihcbesnciassadiedanencoinadiias ldasiesnidaalaiiacbtrs 19

Vango Media v. City of New York, 34 F.3d 68 :

Se Wi ia aiteinainiistestitccenissiciacedumenneinillaxssanen 4

Vili

TABLE OF AUTHORITIES—Continued

Virginia St. Bd. Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748

Page

EFFI iis jasonseteipannstintapnhiutiegintnnivesenniiniasoansoeiinad 12, 16, 17

U.S. CONSTITUTION

Re NE iia icine cssinrdpieesienasclovanemmanditiciadlon

STATUES

Federal Cigarette Labeling and Advertising Act,

ED GEM... GB BSB E + BSI cxccctsseiencassetsavitversiaves Lae

OREO sinha taiiaiessisha'sibrdse harsitihtciibntpeinahaicaidiaeteiinnaa

Highway Beautification Act, 23 U.S.C. § 131.......

DRE Fi TR, a Oe vsssecineviesewisniindtcictntainionennnd

ADMINISTRATIVE REGULATIONS

Regulations Restricting the Sale and Distribution

of Cigarettes.and Smokeless Tobacco Products

to Protect Children and Adolescents, 60 Fed.

Reg. 41,314; 41,318, 18 (proposed August 11,

PED icsisarcesidssninndilaileciaiuanibiahpnianencaivaininbeentaatciniadasanh

OTHER

Blasi and Monaghan, The First Amendment and

Cigarette Advertising, 256 Journal of the

American Medical Ass’n 502, 506-07 (1986) ...

Chafee, Free Speech in the United States (1941)..

Garner, Article: Protecting Children From Joe

Camel and His Friends: A New First

Amendment Preemption Analysis of Tobacco

Billboard Regulation, 46 Emory LJ. 479

ix

TABLE OF AUTHORITIES—Continued

Hooked on Tobacco:_the Teen Epidemic, in 60.

Consumer Reports 142 (1995).......sesesesseseeees

Kessler, A Question of Intent—A Great American

Battle With A Deadly Industry, New York:

BBS Public Affairs (Perseus Book Group),

Mandelker and Ewald. Street Graphics and the

Law (1988, Chicago; Apa)..........cssssesssseseees

Polin, Article: Arguments for the Ban of

Tobacco Advertising, a First Amendment

Analysis, 17 Hofstra L.R. 99 (1988) ..........s0000e

World Health Organization Press Release of 14

November 1999, Nowhere to Run, Nowhere to

Hide-WHO Launches Ground _ Breaking

Global Campaign to Counter Tobacco

Unduastry DO CEG OM .2....000s.0verscserarscecseeseosceseosecnse

White, Merchants of Death The American

TORCCO TIED cs iscseistivse ccsniisnssinmivicnecsascanessines

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. The Federal Cigarette Labeling and Advertising Act, 15

U.S.C. §§ 1331-1335, particularly § 1334(b), which

States:

No requirement or prohibition based on smoking and

health shall be imposed under State law with respect to

the advertising or promotion of any cigarettes the

packages of which are labeled in conformity with the

provisions of this Act.

2. First Amendment to the U.S. Constitution, which states:

Congress shall make no law respecting the establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for redress of grievances.

INTERESTS OF AMICI CURIAE !

The American Planning Association (“APA”) is a

nonprofit, educational research organization dedicated to

advancing state and local land-use planning. APA has state

chapters covering all 50 states, including a Massachusetts

chapter with over 800 members. With more than 30,000

members, it is the oldest and largest organization in the

United States devoted to fostering livable communities

through comprehensive land use planning. Because its

members serve government agencies and private parties, the

APA seeks to preserve the proper role of government in

protecting communities, and the children who live, attend

' Counsel for the parties did not author this brief in whole or in part.

No person or entity other than the amici, their members, and their counsel

made a monetary contribution to the preparation or submission of this

brief. The parties have consented to the filing of amicus briefs, and they

filed a letter reflecting consent with the clerk.

2

schools and play in those communities, as well as

constitutional protections for freedoms of speech and press.

For most communities, where virtually all local elected

leaders strive to make their town “beautiful as well as

healthy, spacious as well as clean,” Berman v. Parker, 348

U.S. 26, 33 (1954), sign regulation is an important tool of

zoning and planning, as “billboards by their very nature,

_ wherever located and however constructed, can be perceived

as an ‘esthetic harm.’” Metromedia v. San Diego, 453 U.S.

490, 510 (1981). Since the vast majority of both on-site signs

and off-site billboards display commercial advertising, any

doctrinal change by this Court to elevate commercial speech

to a higher level of First Amendment protection than that

defined in Central Hudson Gas & Electric v. Public Service

Commission, 447 U.S. 557 (1980), could severely hobble

local governmental efforts to preserve, protect and improve

the appearance of the community.

STATEMENT OF THE CASE

The APA adopts the statement of the case set forth in

respondent’s brief.

SUMMARY OF ARGUMENT

The APA is deeply concerned about both the narrow and

the broad issues presented in this case. The narrow issue is

the ability of states and communities to shield children, when

in the areas where they learn and play, from intrusive,

manipulative images promoting the use of tobacco, a legally

tolerated, highly addictive drug which is_ physically

destructive both to users and others near them. The broader

issue, urged by the tobacco companies and their friends in the

advertising and retailing trades, is whether commercial

speech should now receive equal or nearly equal protection

with classical “core” speech—advocacy on the timeless

topics of politics, religion, science, art, philosophy, moral and

3

ethical issues. On the narrow issue, the tobacco sellers

brazenly proclaim that their economic and expression

freedoms are more important than the health of children and

society’s need to reduce the devastating impact of tobacco

addiction on public health and the public fisc. On the broader

issue, the advertising interests entreat this Court to do nothing

less than destroy the hierarchy of values, the foundation of

this Court’s First Amendment commercial speech

jurisprudence. Such a move would not only trivialize the

First Amendment, by granting the same constitutional dignity

to sales pitches for plastic storage containers as to civil rights

marches, it would also cheapen and demean the history,

tradition, and the purpose of the First Amendment itself.

Both the narrow and the broad positions advocated by

petitioners and their supporters should be rejected.

ARGUMENT

I. THE MASSACHUSETTS REGULATION IS NOT

PREEMPTED BY THE FEDERAL ACT.

A. Most Federal Courts of Appeal Have Correctly

Concluded That Congress Intended to Preempt

Only Message Content, and Not Sign Location.

Four of the federal circuit courts of appeal have considered

the question of whether the Federal Cigarette Labeling and

Advertising Act (“FCLAA,” 15 U.S.C. §§ 1331-1335)

prevents state and local governments from regulating the

location of tobacco signs. The first and fourth circuits

concluded that while Congress intended to _ regulate

statements concerning smoking and health, just as this Court

concluded in Cippolone v. Liggett Group, 505 U.S. 504

(1992), it also left unrestrained the traditional rights of state

and local governments to set rules about where signs may be

displayed. Consolidated Cigar v. Reilly, 218 F.3d 30 (Ist

Cir., 2000), Federation of Advertising Industry

Representatives, Inc. v. Chicago, 189 F.3d 633 (7th Cir.,

ee

4

1999), cert. den., 529 U.S. 1066 (2000) (“FAIR”), Penn

Advertising of Baltimore, Inc. v. Mayor and City Council, 63

F.3d 1318 (4th Cir., 1995), vacated and remanded, 518 U.S.

1030 (1996), adopted as modified, 101 F.3d 332 (4th Cir.,

1996), cert denied, 520 U.S. 1204 (1997).

The Second Circuit’s two cases on point illustrate the

proper scope of federal preemption. In Vango Media v. City

of New York, 34 F.3d 68 (2nd Cir., 1994), the court struck a

New York City ordinance which required one public health

message, defined as “pertaining to the health dangers of

smoking or the health benefits of not smoking” for each four

tobacco ads displayed, and required that 25% of such anti-

tobacco ads be directed to the youth population. Since the

regulation obviously concerned the content of smoking and

health messages, it was held preempted. Yet, in Greater New

York Metropolitan Food Council, Inc., v. Giuliani, 195 F.3d

100 (2nd Cir., 1999), cert. den., 529 U.S. 1066 (2000), the

same court upheld regulations prohibiting most tobacco

villboards within 1,000 feet of places where children

congregate.

The lone exception to this pattern is the Ninth Circuit,

which refused to follow its fellow circuits and held that

FCLAA preempted both message regulation and sign

location. Lindsey v. Tacoma-Pierce County Health Dept.,

195 F.3d 1065 (9th Cir., 1999), amended 203 F.3d 1150

(2000).

B. This Court’s Cipplone Holding, That Congress

Preempted Only Cautionary Statements on

Labels and Advertisements, Controls the

Preemption Issue in This Case.

The intent of Congress is the touchstone of preemption

analysis. That intent may be explicitly stated in the statute or

implied in its structure and purpose. Cippolone v. Liggett

Group, 505 U.S. 504, 516 (1992). |

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5

Congress explicitly stated its intent

to establish a comprehensive Federal program to deal

with cigarette labeling and advertising with respect to

any relationship between smoking and health whereby

(1) the public may be adequately informed about any

adverse health effects of cigarette smoking by inclusion

of warning notices on each package of cigarettes and in

each advertisement of cigarettes; and (2) commerce and

the national economy may be (A) protected to the

maximum extent consistent with this declared policy and

(B) not impeded by diverse, nonuniform, and confusing

cigarette labeling and advertising regulations with

respect to any relationship between smoking and health.

15 U.S.C.§ 1331.

Reading the FCLAA as a whole, it is obvious that

Congress was focused on the message content of tobacco

advertising and labeling. This is clear from § 1333, which

spells out in great detail the text and visual format of the

required warnings. In Cippolone, supra, 505 U.S. at 517, this

Court concluded that the preemptive scope of the FCLAA,

both the 1965 and the 1969 versions, is governed “entirely by

the express language of § 5 of each Act,” and held:

Thus, on their face, these provisions merely prohibited

state and federal rulemaking bodies from mandating

particular cautionary statements on cigarette labels

(§ 5(a)) or in cigarette advertisements (§ 5(b)).

Cippolone, supra, 505 U.S. at 518 (1992) (italic added). The

Court also noted that this construction was required by the

presumption against preemption of state police power

regulations. /bid. Billboard regulations are within the state

police power. Metromedia v. San Diego, 453 U.S. 490, 498

n.7 (1981).

6

Notably, Congress imposed particular warning messages

for billboard ads, § 1333(a)(3), but remained silent on the

typical issues of local billboard control under the zoning

and police powers, such as spacing, size, location, and

illumination. Congress was obviously familiar with these

elements of billboard regulation at the time the FCLAA was

first adopted, since most of them are addressed in the

Highway Beautification Act, 23 U.S.C. § 131, passed only

three months after the original version of the FCLAA.

Congress clearly had the ability to restrict tobacco

advertising by the medium as well as the message, for it

forbade such promotion on any electronic medium subject to

F.C.C. jurisdiction, 15 U.S.C § 1335. Capital Broadcasting

v. Mitchell, 333 F.Supp. 582 (DDC, 1971) aff'd mem. sub

nom, Capital Broadcasting v. Acting Attorney General, 405

U.S. 1000 (1972). The fact that Congress ignored all other

media in the FCLAA reveals an intention not to preempt

regulation of non-electronic media by other branches and

levels of government.

The Seventh Circuit’s analysis of the preemption question

informs the legislative history:

The Senate Report refers to § 5(b) as “narrowly phrased”

and not intended to touch state authority over sales to

minors, taxation, indoor smoking, or “similar police

regulations.” S. Rep. No. 566, 91st Cong., 2d Sess.

(1969) reprinted in 1970 U.S.C.C.A.N. 2652, 2663.

Federation of Advertising Industry Representatives v. City of

Chicago, 189 F.3d 633, 638 (7th Cir., 1999).

Reading the FCLAA in terms of the “structure and purpose

of the statute as a whole,” Medtronic v. Lohr, 518 U.S. 470,

485 (1996), it is inescapable that Congress intended to

preempt only message content of tobacco advertising

statements, and to leave billboard location requirements in the

discretion of state and local legislators.

7

Il. THE MASSACHUSETTS REGULATIONS

ARE CONSTITUTIONAL UNDER CENTRAL

HUDSON.

A.. Although Most Tobacco Advertising Is

Psychologically Deceptive and Arguably

Advocates Illegal Activity, the First Prong of

Central Hudson Is Not a Workable Basis for

Concluding That Speech Promoting Tobacco Is

Totally Without First Amendmeat Protection.

In Central Hudson Gas & Electric ». Public Service

Commission, 447 U.S. 557, 566 (1980) the Court established

a four step test for determining the constitutionality of

restrictions on commercial speech. The first prong of the

Central Hudson test is to determine whether the commercial

speech qualifies for any First Amendment protection at all; if

the message concerns illegal activity or is misleading, then

there is no protection. Central Hudson, supra, 447 U.S. at

566. Tobacco advertising in general has often been criticized

as intentionally deceptive,’ since the ads typically associate

tobacco with unrealistic, idyllic images. However, short of

a national, total ban on all cigarette advertising,’

“deceptiveness” is not a workable basis on which to judge

potential First Amendment protection for tobacco advertising

on billboards, because the task of evaluating each separate

? See, for example, World Health Organization Press Release of 4

November 1999 entitled, “Nowhere to Run, Nowhere to Hide - WHO

Launches Ground Breaking Global Campaign te Counter Tobacco

Industry Deception,” available on the internet at www.health.fgov.be

/WHI3/krant/ krantarch99/ kranttekstnov/ 991109m01lwho.htm, and

White, Merchants of Death-The American Tobacco Industry

* See Polin, Article: Argument for the Ban of Tobacco Advertising, a

First Amendment Analysis, 17 Hofstra L. R. 99 (1988); and Blasi and

Monaghan, The First Amendment and Cigarette Advertising, 256 Journal

of the American Medical Association 502, 506-07 (1986), advocating a

complete ban on all cigarette advertising.

8

tobacco ad for deceptiveness would place an unwieldy

administrative burden on government officials.

The “concerning illegal activity” element is also

problematic, for while tobacco is legal for adults, it is illegal

for minors in every state. As memorably stated by U.S.

District Court Judge William B. Young in his trial court

decision in this case:

CIGARETTE ADVERTISING IS FUNCTIONAL

PORNOGRAPHY. The metaphor is apt. Both are

entirely legal. Both are spawned by and supported by

multi-billion-dollar industries generating significant

economic activity. While ostensibly clucking in

disapproval, millions of adult Americans support each

industry with considerable cash outlays yet seek to have

the government teach our children to avoid that which so

many of us eagerly purchase.

Lorillard v. Reilly, 84 F.Supp.2d 180, 182 (2000).

B. Massachusetts’ Regulations Serve Several

Governmental Interests Which Are at Least

“Substantial.”

The second prong of Central Hudson asks if the regulation

serves a substantial governmental interest. Massachusetts’

ban on tobacco advertising near schools and playgrounds

serves several interests which are “substantial” or stronger.

The most obvious is the protection of children from harmful

influences, and to diminish the risk that they will be

persuaded to break the law by smoking before they have the

legal right to make that choice. This Court has long

recognized child protection as a governmental and family

interest of the highest order. Denver Area Educational

Telecommunications Consortium, Inc. v. F.C.C., 518 U.S.

727, 743 (1996) (the court has often found “compelling” the

need to protect children from exposure to patently offensive

sexual material); F.C.C. v. Pacifica Foundation, 438 U.S.

726, 749, 750 (1978) (F.C.C. properly required broadcasters

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9

to channel indecent broadcasts to times when children most

likely would not be listening); Ginsberg v. New York, 390

U.S. 629 639-40 (1968) (state has an interest to see that

children are safeguarded from abuses which might prevent

their growth into free and independent well-developed men

and citizens.)

In only two of the Court’s commercial speech cases has

protection of children been offered as a justification, namely

the harm caused by exposure to ads for contraceptives. Carey

v. Population Services International, 431 U.S. 678 (1977),

Bolger v. Young’s Drug Products Corp., 463 U.S. 60 (1983).

In Bolger, which concerned a national ban on ads for

contraceptives by mail order, the Court noted that the ads

were not intrusive and that the danger of incidental exposure

was small. 463 U.S. at 74. Not so here; it is the very

intrusiveness of billboards that make them attractive to

advertisers. Furthermore, both Bolger and Carey concerned

products related to exercise of a constitutional right,

procreative freedom. In contrast, there is no constitutional

right to smoke or chew tobacco, or even to sell it. Cf. Mugler

v. Kansas, 123 U.S. 623 (1887).

The Massachusetts regulations also serve the substantial

governmental interests in public health and reducing the

enormous costs of treating tobacco-related disease, by

reducing the numbers of children and teens lured into the

tobacco habit.

Since it is illegal to sell tobacco to minors in

Massachusetts,’ the regulations here also advance that policy.

In U.S. v. Edge Broadcasting, 509 U.S. 418, 425 (1993) this

Court upheld regulations forbidding broadcast advertising of

gambling on the ground that the speech restriction served to

avoid undermining state policy against gambling.

* Mass. G. L. ch. 270, 6.

10

The second prong of Central Hudson, a substantial govern-

mental interest, is thrice satisfied in this case.

C. The Regulations Directly Advance _ the

Substantial Interests in Protecting Children

and the Public Health System by Reducing the

Number of Children and Teens Lured into

Becoming New Smokers.

The tobacco industry has long known that the best source

for new buyers / addicts is youth, especially alienated and

rebellious young people who seek some symbol of

independence from parental and societal authority figures.” It

is no wonder the industry is fighting for their neighborhood

billboards; now that tobacco ads are banned from television

and radio, billboards near schools and playgrounds provide

the best opportunity recruit new customers. The FDA has

estimated that 3,000 teenagers start smoking each day;° that 3

translates into roughly one million new users per year, most

of whom will become life-long addicts, customers who, by |)

the physical imperative of the addiction mechanism,

effectively lose their free choice about purchasing the

product.

4

Tobacco addiction and the diseases it causes or worsens |

impose an enormous burden on the public health care system.

Just last term this Court noted the FDA’s findings that:

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;

more than 400,000 people die each year from tobacco-

related illnesses, such as cancer, respiratory illnesses,

and heart disease. ... the only way to reduce the

amount of tobacco-related illness and mortality was to

reduce the level of addiction, a goal that could be

* See Hooked on Tobacco: The Teen Epidemic, 60 Consumer Reps.

142, (42 (1995)

° Kegalations Restricting the Sale and Distribution of Cigarettes and

Smokeless Tobacco Products to Protect Children and Adolescents, 60

Fed. Reg. 41,314, 41,317 18 (1995) (proposed Aug. 11, 1995)

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accomplished only by preventing children and

adolescents from starting to use tobacco... . 82% of

adult smokers had their first cigarette before the age of

18, and more than half had already become regular

smokers by that age. . . . children were beginning to

smoke at a younger age, that the prevalence of youth

smoking had recently increased, and that similar

problems existed with respect to smokeless tobacco. . .

[and that] if the number of children and adolescents who

begin tobacco use can be substantially diminished,

tobacco-related illness can be correspondingly reduced

because data suggest that anyone who does not begin

smoking in childhood or adolescence is unlikely ever to

begin.

F.D.A. v. Brown and Williamson, 529 U.S. 120, 134 et seg.

(2000).

Given the crucial role of advertising in luring new smokers,

the undisputed fact of serious addiction caused by nicotine,

and the devastating costs to the public health care system of

treating tobacco-related illness, it is beyond question that

reducing the number of new smokers by sharply limiting

exposure of the enticing images to our most vulnerable

citizens, serves substantial, even compelling, governmental

interests.’

The third test of Central Hudson-advancing the substantial

governmental interest—is met.

D. The Regulations Are Not More Extensive Than

Necessary to Serve the Substantial Public

Interests. :

The tobacco companies argue that Massachusetts’ ban on

tobacco billboards within 1,000 feet of schools or

” See, generally, Kessler: A Question of Intent—A Great American

Battle With a Deadly Industry, New York, BBS Public Affairs (Perseus

Books Group), 2001

12

playgrounds is excessive, and thus violates the final prong of

Central Hudson, that the regulations be no more extensive

than necessary, restated as “narrowly tailored to achieve the

desired objective” in Board of Trustees v. Fox, 492 U.S. 469,

480 (1989).

It is debatable whether the exclusion zone should be 300

feet or 500 feet or 1,000 feet. However, this Court has long

refrained from second guessing legislative judgments in this

area, and should do so again here. Metromedia v. San Diego,

453 U.S. 490, 508, 509 (1981) (Court will not reject city’s

judgment to value on-site advertising over off-site); Burson v.

Freeman, 504 U.S. 191, 210 (Court did not view the question

of whether a 100-foot boundary could be more tightly drawn

as being of constitutional dimension); Hill v. Colorado, 530

U.S. 703,120 S. Ct. 2480, 2495 (2000) (Court would accord a

measure of deference to Colorado Legislature in adopting 8-

foot interval).

The tobacco companies assert that the principles of

44 Liquormart v. Rhode Island, 517 U.S. 484 (1996), Rubin v.

Coors, 514 U.S. 476 (1995), and Virginia St. Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425

U.S. 748 (1976) demand reversal here. Those cases are all

distinguishable because the regulations totally banned purely

factual information (alcohol pricing, alcohol content,

prescription drug pricing) which adult consumers could use to

make intelligent choices concerning products that were legal

for them to buy. The regulations under scrutiny here do not

impose a total ban, do not involve purely factual information,

and are tailored to shield children from images enticing them

to use a highly dangerous product which is illegal for them.

Nor may it be successfully argued that the tobacco

companies are now foreclosed from presenting their message

to adults. They remain free to purchase newspaper and

magazine advertising, and frequently do so. They remain free

to advertise on billboards which are not within 1,000 feet of

schools or playgrounds.

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When young children are constantly and involuntarily

bombarded with seductive messages appearing on

neighborhood billboards that promote a_ lifelong

addiction, not only is their health endangered, but their

right to be free from having adult choices foisted upon

them is not so subtly infringed.

Garner, Article: Protecting Children From Joe Camel and

His Friends: A New First Amendment Preemption Analysis of

Tobacco Billboard Regulation, 46 Emory L.J. 479, 486

(1997).

Beyond the “purely factual information” distinction,

44 Liquormart, Rubin and Virginia Pharmacy also differ on

the issue of intrusiveness of the medium. Children rarely if

ever read the small print on beer labels, or ads in newspapers

for prescription drugs or liquor. But giant, full color,

illuminated billboards near schools and playgrounds are

visually unavoidable; their purpose is to arrest the viewers’

attention, if only for a few seconds, and to implant in an

impressionable young mind a powerful and persuasive visual

image. Nearly seventy years ago this Court noted the highly

intrusive nature of strategically placed billboards and

placards. In upholding Utah’s total ban on tobacco

billboards, the Court said:

The young people as well as the adults have the message

of the billboard thrust upon them by all the arts and

devices that skill can produce. In the case of newspapers

and magazines, there must be some seeking by the one

who is to see and read the advertisement. The radio can

be turned off, but not so the billboard or street car

placard.

Packer Corp. v. Utah, 285 U.S. 105, 110 (1932).

The Massachusetts regulations pass the final test of Central

Hudson.

14

Ill. THIS CASE PRESENTS NO OCCASION FOR A

MAJOR CHANGE TO THE COURT’S COM-

MERCIAL SPEECH DOCTRINE.

The advertising and retailing industries once again entreat

this Court to abandon or seriously modify the commercial

speech doctrine and the Central Hudson test. They make

essentially the same arguments they presented only two terms

ago in Greater New Orleans Broadcasting Ass'n, Inc. v U.S.,

527 U.S. 173 (1999). Once again, the Court’s response

should be:

In this case, there is no need to break new ground.

Central Hudson, as applied in our more recent

commercial speech cases, provides an adequate basis for

decision.

527 U.S. at 184.

A. Our Cultural Respect for the Challengers Who

Changed the Course of History Requires a

Higher Level of Protection for Ideological

Speech.

At the core of the tobacco companies’ constitutional call is

the question: “Why should our messages have less

constitutional protection than political or religious speech?

Advertising matters more to the common people than the

great debates, and advertising provides information about

products and services, and improves the efficiency of the

economic system.” Even if we assume these points, they

show only that commercial speech is entitled to some

protection, not that it deserves equal treatment under the First

Amendment. This Court’s wisdom has long stressed that the

First Amendment protects, first and foremost, expression on

matters of politics, religion, philosophy, the arts, science and

cultural matters; in short, the marketplace of ideas and the

search for truth.

15

The primary item in the marketplace of ideas is criticism of

the government. It is not natural for a government to allow

open criticism of its policies, simply because criticism can

lead to a loss of popular support and thus to a loss of power.

This sentiment was expressed by Lord Holt in Rex v. Tuchin,

Holt 424 (1704): ‘

If men should not be called upon to account for

possessing the people with an ill opinion of the

government, no government can subsist; for it is very

necessary for every government, that the people should

have a good opinion of it. . . . [Producing animosities as

to the management of the government] has always been

looked upon as a crime, and no government can be safe

unless it be punished.

Quoted in Chafee, Free Speech in the United States, 180

(1941).

Our First Amendment turns Lord Holt’s concept upside

down, and converts the punishable crime of criticizing the

government into a legal right of the first order.

Critics and dissidents of every kind find protection under

the First Amendment. Even when we disagree with them, or

find their messages revolting or incomprehensible, still we

reserve a deep respect for idealists, protestors and crusaders

whose quests for the more meaningful life, deeper insights

into the mysteries of nature, more transcendent music, a more

inspiring novel, or a more just political system leads them to

decry and defy the norms of their time. Because some of the

dissidents are eventually proven right, we hold in sometimes

nervous reverence the right of all, crackpots and visionaries

alike, to dissent from the established view. This profound

respect for “your right to say it,” is deep in our culture: our

law reflects that cultural tradition, as it should.

A special respect for individual liberty in the home has

long been part of our culture and our law; that principle

16

has special resonance when the government seeks to

constrain a person’s ability to speak there. Most

Americans would be understandably dismayed, given

that tradition, to learn that it was illegal to display from

their window an 8-by-11 inch sign expressing their

political views.

Ladue v. Gilleo, 512 U.S. 43 (1994).

[A] city council [may not] enact an _ ordinance

prohibiting only those legally obscene works that

contain criticism of the city government or, indeed, that

do not include endorsement of city government.

RAV. v. St. Paul, 505 U.S. 377, 384 (1992).

B. This Court’s Early Cases on Commercial

Speech Clearly Laid the Foundation for

Maintaining the Lower Level of Protection for

Commercial Speech.

When this Court first extended First Amendment

protection to advertising, it explained the reasons and social

justifications for doing so. In Virginia St. Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761

(1976) the Court explained the difference between ideological

debate and expression on commercial matters:

Our pharmacist does not wish to editorialize on any

subject, cultural, philosophical, or political. He does not

wish to report any particularly newsworthy fact, or to

make generalized observations even about commercial

matters. The “idea” he wishes to communicate is simply

this: “I will sell you the X prescription drug at the Y

price.”

* * * *

Our question is whether speech which does no more than

propose a commercial transaction is so removed from

any exposition of ideas, and from truth, science,

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morality, and arts in general, in its diffusion of liberal

sentiments on the administration of Government that it

lacks all protection. Our answer is that it is not.

425 U.S. at 761, 762 (internal citations and punctuation

omitted). In the same case Justice Stewart commented, in

words since quoted in countless of lower court opinions:

[T]here are important differences between commercial

price and product advertising, on the one hand, and

ideological communication on the other... . Ideological

expression, be it oral, literary, pictorial, or theatrical, is

integrally related to the exposition of thought—thought

that may shape our concepts of the whole universe of

man. Although such expression may convey factual

information relevant to social and individual decision-

making, it is protected by the Constitution, whether or

not it contains factual representations and even if it

includes inaccurate assertions of fact... .

Commercial price and product ‘advertising differs

markedly from ideological expression because it is

confined to the promotion of specific goods or services.

The First Amendment protects the advertisement

because of the ‘information of potential interest and

value’ conveyed, rather than because of any direct

contribution to the interchange of ideas.

425 U.S. at 779-780.

Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), gave

the Court another Opportunity to recognize the “common

sense and legal distinction” between speech proposing a

commercial transaction and other varieties:

To require a parity of constitutional protection for

commercial and noncommercial speech alike could

invite dilution, simply by a leveling process, of tlhe force

of the Amendment’s guarantee with respect to the latter

kind of speech. Rather than subject the First

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Amendment to such a devitalization, we instead have

afforded commercial speech a limited measure of

protection, commensurate with its subordinate position

in the scale of First Amendment values, while allowing

modes of regulation that might be impermissible in the

realm of noncommercial expression.

436 US. at 456.

In Central Hudson Gas & Electric v. Public Service

Commission, 447 U.S. 557 (1980) the Court announced the

now-classic four part test for the constitutionality of

restrictions on commercial speech. The lead opinion said:

Apparently the [Stevens concurrence] opinion would

accord full First Amendment protection to all

promotional advertising that includes claims “relating to

. . « questions frequently discussed and debated by our

political leaders.” Although this approach responds to

the serious issues surrounding our national energy policy

as raised in this case, we think it would blur further the

line the Court has sought to draw in commercial speech

cases. . . . This Court’s decisions on commercial

expression have rested on the premise that such speech,

although meriting some protection, is of less

constitutional moment than other forms of speech.

447 U.S. at 563 n.5.

Metromedia v. San Diego, 453 U.S. 490 (1981), was the

Court’s first (and, until this case, only) decision on

advertising billboard regulation in the commercial speech era.

Given the different levels of protection for commercial and

noncommercial speech, the plurality analyzed the two classes

separately. The restrictions on commercial speech were

validated (the city was free to value on-site commercial

advertising over off-site commercial), while the restrictions

on noncommercial speech (interpreted to mean that the city

was favoring certain noncommercial messages over others, as

well as favoring commercial over noncommercial in some

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locations), were found unconstitutional by the plurality.®

These concepts form the foundation for virtually all sign

regulations in the nation today; abandoning or corroding them

now would wreak havoc on the ability of state and local

governments to protect the appearance of their commnities

through effective sign control.

C. The Fact That the Regulations Affect Oniy

Tobacco Signs Does Not Invoke Strict Scrutiny.

In the arena of ideological speech, standard First

Amendment analysis first asks if the regulation is content

based. If it is, then strict scrutiny applies. Burson vy.

Freeman, 504 U.S. 191 (1992). If it is content neutral, then

the time, place and manner rule applies. Ward v. Rock

Against Racism, 491 U.S. 781 (1989). However, this

technique of raising of the standard of review for content

based distinctions generally has not been followed in the

commercial speech cases. Rather Central Hudson has been

applied in a manner substantially Similar to the time, place &

manner test, which does not require “least restrictive means.”

Fox, supra, 492 U.S. at 477. For example, in Metromedia v.

San Diego, 453 U.S. 490 (1981), the plurality decision

indicated that the city was free to value some commercial

speech over other expression in the same category, based on

both locational and content factors:

Second, the city may believe that offsite advertising,

with its periodically changing content, presents a more

acute problem than does onsite advertising. Third, San

Diego has obviously chosen to value one kind of

* The commercial speech analysis was supported by five votes; the

plurality of four plus Justice Stevens. Justices Brennan and Blackmun

concurred with the plurality’s result for the noncommercial speech

restrictions, but not the plurality’s reasoning; Brennan and Blackmun

would have invalidated the entire ordinance. See Ackerley

Communications v. City of Somerville, 878 F.2d 513, 517 n.8 (Ast Cir.,

1989).

20 ;

commercial speech—onsite advertising—more than

another kind of commercial speech—offsite advert-

ising. . . . The city has decided that in a limited

instance——onsite commercial advertising—its interests

should yield. We do not reject that judgment.

453 U.S. at 511. Justice Stevens concurred in this portion of

the plurality decision, 453 U.S. at 541.

While the Metromedia plurality found the San Diego sign

ordinance invalid as to noncommercial speech, it did so in

part because certain signs-religious symbols, commemorative

placques, time and temperature displays, temporary political

Signs, etc.-were exempted from the general ban on

noncommercial speech. To the plurality, these exemptions

showed an _ impermissible favoritism to _ certain

noncommercial messages. 453 U.S. at 514. However, on this

point all five of the other justices disagreed with the

plurality’s reasoning, and said in essence that the exceptions

to the general ban should make no real difference in

constitutional analysis because they did not invoke concerns

protected by the First Amendment. Justice Stevens said the

plurality’s focus on the exceptions from the general led it to

conclude the ordinance is unconstitutional because it did not

abridge enough speech, 453 U.S. at 540, that the neutral

exceptions for certain noncommercial signs did not pose a

threat to any interests protected by the First Amendment

because they did not show that the government is trying to

influence public opinion or limit public debate on particular

issues, 453 U.S. at 554, and that the city’s allowance of

additional communication during political campaigns was

consistent with the interests the First Amendment was

designed to protect, 453 U.S. at 555. Chief Justice Burger

called the exceptions “negligible,” 453 U.S. at 562, and said

they did “not remotely endanger freedom of speech,” 453

U.S. at 564. Justice Rehnquist said he was generally in

agreement with the Chief Justice, and added that the limited

exceptions were of the types which do not render a statute

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21

unconstitutional; he would have treated the exception for

political season billboards as self-limiting and having an

effect on esthetics only during campaign season. Justices

Brennan and Blackmun said that the city’s few exceptions did

not alter the overall character of the ordinance as a total ban,

453 U.S. at 526.”

The Central Hudson case itself also noted that the strict

scrutiny rule for content based distinctions, which applies in

other contexts, does not apply, in the commercial speech

arena. 447 U.S. at 564 n.6. Justice Stevens noted in his

concurrence in R.A.V. v. St. Paul, 505 U.S. 377, 422 (1992),

that the government may limit advertising for cigarettes but

not cigars, citing to the very federal statute in issue in this

case. He also stated:

[Ojur decisions demonstrate that content-based

distinctions, far from being presumptively invalid, are an

inevitable and indispensable aspect of a coherent

understanding of the First Amendment. [§] This is true at

every level of First Amendment law. In broadest terms,

our entire First Amendment jurisprudence creates a

regime based on the content of speech. The scope of the

First Amendment is determined by the content of

expressive activity. ...

Our First Amendment decisions have created a rough

hierarchy in the constitutional protection of speech.

Core political speech occupies the highest, most

protected position; commercial speech and nonobscene,

sexually explicit speech are regarded as a sort of second-

class expression; obscenity and fighting words receive

the least protection of all.

505 U.S. 377, 420. 422

* In the 3rd Circuit, the theory of “site relevance” has supplanted the

Metromedia plurality’s analysis of exemptions from a general ban. Rappa

v. New Castle County, 18 F.3d 1043 (3rd Circ., 1994)

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The Court has on several occasions reviewed categorical

regulations under the Central Hudson analysis, without

resorting to strict or exacting scrutiny. 44 Liquormart v.

Rhode Island, 517 U.S. 484 (1996) and Rubin v. Coors, 514

U.S. 476 (1995) (liquor price advertising and alcohol

content); U.S. v. Edge Broadcasting, 509 U.S. 418 (1993) and

Greater New Orleans Broadcasting Ass'n, Inc. v U.S., 527

U.S. 173 (1999) (broadcast advertising for gambling). These

cases illustrate the flexibility of the Central Hudson test in

adapting to a wide range of factual situations. Fox, supra. 492

U.S. at 476.

It is unnecessary and unwise to invoke strict scrutiny in

commercial speech cases because Central Hudson allows a

balancing of interests which considers the importance of the

governmental interest, the degree to which the interest is

served, and the tightness of the fit between means and ends.

Invoking strict scrutiny for content based distinctions which

are viewpoint neutral would destroy of the concept of the

First Amendment’s hierarchy of values; if any commercial

speech were to be reviewed under strict scrutiny, then the

entire concept of limited protection for commercial speech -

and full protection for ideological speech - would be

destroyed. The danger of “leveling” was pointed out by

Justice Blackmun in his concurrence in R.A.V. v. St. Paul:

If all expressive activity must be accorded the same

protection, that protection will be scant. The simple

reality is that the Court will never provide child

pornography or cigarette advertising the level of

protection customarily granted political speech. If we are

forbidden to categorize . . . we shall reduce protection

across the board.

505 U.S. at 415.

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D. The Court’s Recent Commercial Speech Cases

Confirm That Central Hudson Is a Workable

Test, Flexible Enough to Adapt to a Wide

Range of Factual Situations.

In Greater New Orleans Broadcasting Ass’n, Inc. v U.S.,

527 U.S. 173 (1999) the Court insightfully answered the

advertising industry’s relentless tirade against the Central

Huds n test:

The four parts of the Central Hudson test are not entirely

discrete. All are important and, to a certain extent,

interrelated: Each raises a relevant question that may not

be dispositive to the First Amendment inquiry, but the

answer to which may inform a judgment concerning the

other three.

527 U.S. at 183, 184.

This concept—the integrated, interdependent nature of the

four inquiries—is the key to maintaining Central Hudson as

the controlling test in commercial speech cases, and to

honoring the traditional hierarchy of values in First

Amendment law.

E. A Significant Toughening of the Central

Hudson Standard For Billboards Would

Seriously Impede State and Local Govern-

ment’s Ability to Regulate Signs.

As an association of land use planners, the APA is most

keenly concerned that this case might be used to raise the

protection level for commercial speech and thus make it far

more difficult for state and local governments to regulate

signage. All across the nation, local policy makers and

planners view sign regulation as one of their most effective

tools for preserving and improving the appearance of their

towns and cities.

The concept of the public welfare is broad and inclusive.

The values it represents are spiritual as well as physical,

a4

aesthetic as well as monetary. It is within the power of

the legislature to determine that the community should

be beautiful as well as healthy, spacious as well as clean,

well-balanced as well as carefully patrolled.

Berman v. Parker, 348 U.S. 26, 33 (1954).

Regardless of the label we give it, we are discussing a

very simple and basic question: the authority of local

government to protect its citizens’ legitimate interests in

traffic safety and the environment by eliminating

distracting and ugly structures from its buildings and

roadways, to define which billboards actually pose that

danger, and to decide whether, in certain instances, the

public’s need for information outweighs the dangers

perceived.

Metromedia v. San Diego, 453 U.S. 490, 557 (Burger, C.J.,

dissenting) (1981).

Signs often set the visual tone of an area and thus

determine a visitor’s all important “first impression.”

Sometimes the total signage can dominate or even define the

image, as shown by the Las Vegas strip or Times Square in

New York City. But most cities try to avoid the garishness of

Las Vegas or Times Square; they want a reasonable balance

between the advertising and identification needs of their local

business community and the esthetic concerns of their

environmental, arts, historic and scenic constituencies.

For street graphics to communicate effectively, they

must be neither too large nor too small, neither too

numerous nor absent altogether, neither too garish nor

too bland.

Mandelker and Ewald: Street Graphics and the Law, p. 33

(1988, Chicago: APA).

To preserve state and local governments’ flexibility to

regulate signs in harmony with the local situation, the

principle that commercial speech enjoys only a limited level

25

of protection under the First Amendment must be sustained

once again. The Central Hudson test, as refined and adapted

in the many cases applying it, is a time proven method for

analyzing commercial speech regulations.

CONCLUSION

The challenged regulations are not preempted because

Congress intended to address only statements about smoking

and health; other than the broadcast ban - which shows that

Congress knew how to regulated media as well as message -

Congress did not intend to address media regulation issues,

such as location of signs.

Given the severe impact on personal and public health

caused by tobacco use, the high susceptibility of children to

alluring images promoting a product which is illegal for them,

and the visually intrusive nature of billboards, the subject

regulations should be sustained under Central Hudson.

The Central Hudson test, and the hierarchy of values

concept on which it is based, must be maintained to preserve

our cultural tradition of higher respect for ideological speech.

The principles of that case are crucial to allowing state and

local governments the flexibility they need to regulate signs

to serve the local esthetic interests.

Respectfully submitted,

RANDAL R. MORRISON

ATTORNEY AT LAW

P.O. Box 421318

San Diego, CA 92142-1318

(858) 573-6101

March 26, 2001